protection of part-time workers in irish law

Industrial Relations Journal ISSN 0019-8692 53.00

Protection of part-time workers in Irish law Brian Wilkinson

In Ireland, employment protection rights have been extended to regular part-time workers. This article traces the legislation’s history’ examines arguments of employers and unions and, having discussed the contents of the new legislation, raises the question whether the legislation is compatible with requirements of EC an ti-discrimination law.

The growth of part-time and atypical employment in industrialised countries has been the subject of much attention recently[l]. According to the ILO, there are now some fifty million part-time workers in the industrialised market economies, an increase of some 30% over the last decade. The rise in part-time employment carries with it a number of issues, not least questions as to the legal rights of such workers, and the divergence in treatment of part-time and full-time employees. Although tra- ditionally seen as part of the atypical workforce, part-time employment is no longer so insignificant that it can be dealt with in a dismissive manner. Declining full-time employment opportunities and the increase in part-time employment in most industrialised countries has made part-time employment an important issue far labour relations and labour law.

In this article, the position of part-time employees under Irish law is explored, with attention being paid to recent legislative changes which extend certain employment protection legislation to ’regular’ part-time workers. In section 1 of the article the extent

0 Brian Wilkinson is a barrister currently engaged in research at Nuffield College, Oxford.

of part-time employment in Ireland is out- lined; while section 2 examines some of the reasons for this type of employment. In section 3, the extent of legal protection prior to the recent legislation is described, and the reasons for the minimal protection then existing are set out in section 4. Section 5 looks at employer and union arguments in relation to protection of part-time workers, culminating in section 6, where the provisions and effects of the Worker Protection (Regular Part-time Employees) Act, 1991 are explored.

1. The extent of part-time work in Ireland

Although the proportion of the workforce engaged in part-time employment in Ireland is small in comparison with other European countries, such employment has increased in frequency over the last decade. In 1988, part-time workers accounted for 6.6% of the labour force, an increase of 3% from 1977. According to the 1988 Labour Force Survey, some 72,000 individuals were engaged in regular part-time work, of whom some 70% were women. In addition, there were 15,200 persons in occasional part-time work, of whom 10,000 were women. Furthermore, by

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1988 female part-time work had increased from 9% in 1977 to 14.3% of female participation in the total labour force. By contrast, male part-time work increased from a mere

In discussing the legal protection of part- time work, it is necessary to avoid giving the impression that all part-time employees could not benefit from existing employment protection legislation[2]. Many employees who would be classified as working part- time under definitions such as that used by the ILO were considered to be full-time, to all intents and purposes, for the purpose of legislation once they work a minimum of eighteen hours per week[3]. In addition, recent decisions from the European Court of Justice have required the extension of certain existing legal protection to part-time workers, on the basis of the guarantee of equality in Article 119 of the Treaty of Rome[4]. Such case law developments may eventually have significant practical impact on the rights enjoyed by part-time workers, yet, pending such developments, there remained the problem of extending protection to those who were ’beyond the net’[5]. In Ireland some 35% of the part-time workforce was not covered by protective legislation as they worked less than the threshold eighteen hours per week[6].* The significance of these figures becomes apparent when one realises that the rate of regular part-time work increased by approximately 83940 in the years from 1977 to 1988. In the same period full- time employment decreased by 2%. In addition, there has been a perceptible substi- tution of full-time with part-time employment across industry[7].

1.6% to 3%.

2. The reasons for part-time work

A number of reasons exist for the use of part-time work: some concern employer preferences, some concern employee requirements, and some are related to general employment opportunities. Although the following reasons are not intended to be exhaustive, they give an indication of some of the influences being exerted. a. Employer preferences: According to the Federation of Irish

~

* The figure is based on 1986 data, which is the most current available at time of writing.

Employers (FIE), employers need part-time employees because of the requirement for greater labour flexibility.

Also of importance, apparently, are the lower labour costs involved in hiring part- time workers. For example, employer’s contributions to social insurance schemes are but 0.5% of earnings for employees working less than 18 hours a week, whereas for those working more than 18 hours, the employer must contribute 12.2%. This differential of 11.7% may prove to be an incentive to employers to prefer part-time over full-time workers, especially given the rise in social insurance contributions by employers from 5.1% in 1978 to 6.5% of payroll costs in 1988181. Moreover, until the 1991 Act, the employer was not obliged to provide statutory maternity leave for those working less than 18 hours a week; redundancy payments for those working less than 18 hours a week; nor holiday pay for those working less than 120 hours per month.

It is arguable that such savings may be unimportant on an individual basis and, to the small firm, perhaps outweighed by the costs of training and recruiting multiple workers. However, given that part-time workers are often paid at a lesser rate per hour than full-time workers, in addition to the difference in social insurance costs, and the general benefits of having a workforce with minimal job security, the benefits to a medium to large-size employer may out- weigh such training, recruiting and other costs.

A further reason which cannot be ruled out is that given the majority of part-time workers are women, it is cheaper for employers to hire such workers. There are a number of factors to be taken into account in making this assessment. Historically, part- time workers have been paid a lower rate per hour than full-time workers. While recent decisions from the European Court of Justice have declared such practices to be illegal where the majority of part-time workers are of a different gender to the majority of full-time workers, the implications of these decisions have still to be translated into equal pay in many industries[9]. Moreover, given that the majority of part-time workers are women, their wage rates have tradition- ally remained below those paid to male employees, whether within the same undertaking or not. Despite the existence of equal pay legislation, in Ireland, as elsewhere,

Protection of part-time workers in lrish law 121

female rates of pay are well below male equivalents. In 1987 the average female weekly earnings in manufacturing industry amounted to 60% of the male equivalent. Hourly earnings rose from 58% to 68% of that of men in the same period[lO]. b. Employee preferences and employment opportunities: Significant as the above reasons may be, what has to be avoided in a discussion of the reasons for part-time work is an ascription of all benefits to the employer. Such a depiction is both crude and naive. As with employers, part-time work suits employees for a variety of reasons also. The vast majority of part- time workers in Ireland are women, and the majority of these are married. In 1988, 70% of part-time workers were women, 75% of whom were married, separated or div- orced[ll]. Given that the most common divi- sion of responsibilities between the sexes requires women to take responsibility for domestic affairs, full-time work is often incompatible with such commitments and responsibilities. Forty-one per cent of the female respondents in the 1988 Labour Force Survey stated family responsibilities as their reason for having a part-time as opposed to full-time job.

A second pressing reason for the growth in part-time work is declining full-time employment opportunities. Many workers have no other option but to accept part-time work, whether or not they want full-time work. This is especially so in areas of the service sector where, despite a growth in service sector employment generally, full- time job opportunities in clerical work, sales and light industry have been declining. The 1988 Labour Force Survey demonstrated that 44% of those involved in part-time work would accept a full time job if available[l2].

3. The extent of legislative protection for part-time

workers Put bluntly, the legal protection available to part-time workers in Ireland, in comparison with their full-time counterparts, prior to the current Act was derisory.* Although the FIE

* In the remainder of this article, reference to part- time workers will imply those workers who work hours below the qualification threshold, except where the context indicates otherwise.

correctly pointed out that part-time workers benefit from general legislation in relation to health and safety at work, employment equality law (albeit in a limited form) and, where applicable, registered agreements governing conditions of work in affected industries, the extent of the protection remained insubstantial[l3].

The application of protective legislation depended on the employee concerned satisfying a threshold hours-worked requirement, usually of 18 hours per week. In areas such as redundancy[l4], terms and conditions of employment[l5], paid leave and holidays[l6], unfair dismissal[l7], and the protection of employees in the event of the employer's insolvency[l8], such a threshold applied. In 1986,35'/0 of all regular part-time employees worked less than 18 hours a week.

An important lacuna in the legal protection available to part-time employees in Ireland was the denial of paid maternity leave and the right to return to work after confinement. Given that the majority of Irish part-time workers are women, including a majority of those working less than 18 hours per week (approximately 40% of female part-timers by 1983 figures) this was a significant issue. To gain the benefit of the Maternity (Protection of Employees) Act, 1981, employees must be fully insurable under the social welfare code, which required working 18 hours a week. Consequently, a substantial number of female part-time employees were only insurable under the occupational injuries section of the social welfare code and were denied the benefit of the Act. Of further interest is that in Ireland the exclusion of part-time workers, predominantly women as we have seen, from protective employment legislation had been deliberate.

4. Excluding women: the rationale

The history behind the absence of protection for part-time workers in Ireland reflects a stereotypical view of women's role in society and the value of women's work. This is clear from the debates on the Redundancy Payments Act, 2967 where a central concern for members of the Oireachtast was to ensure that married women should not bene-

t "Oireachtas" being the Irish term for Parliament.

122 lndustrial Relations journal

fit from redundancy payments in regard to their part-time employment:

It is common practice in many factories now, with a shortage of single workers, for married women to come in perhaps from 6 to 10 pm and work four hours a night on five or six days a week, up to perhaps 25 hours. Under the provisions as they stand, and even with my amendment, those married women will be included in the scheme. From the employers’ point of view it is unsatisfac- tory that this should be so. They come in under a loose system, recognising that they may have domestic problems and that if a child is ill or the husband insists on taking his wife to the pictures, the employer will accept a certain irregularity of attendance. He pays them weekly according to the hours they work, sometimes varying consider- ably. Under this Bill the employer will be required to keep precise records year after year for these almost casual employees, which is going to impose an enormous burden on him in respect of a whole category who should not be entitled to redundancy payments and for whom this scheme is not designed[19].

To some extent, the 1967 debate can be explained, although not justified, by reference to the operation of a ’marriage bar’ in the Irish public service until 1973, which was also implemented in many parts of the private sector. The effect of this ’bar’ was to require female employees to relinquish their employment on becoming married. The lack of urgent concern for the interests of married female workers in the above debate can, consequently, be understood in the context of the era. However, on the next occasion that the treatment of part-time workers arose for debate, especially the treatment of female workers, no such social context could be said to apply.

The next occasion was the debate on the Maternity (Protection of Employees) Act, 1981. There, while expressing concern over the position of part-time workers, calls for the provision of rights to maternity leave for such workers were rejected by the then Minister for Labour. The rationale provided was that the provision of such rights was complicated by the social welfare codes, which supply the funds for women on maternity leave, and thus required separate attention at a later date[20].

Until quite recently, such later date never seems to have arisen. Although in 1984 the topic of part-time work again arose in the Oireachtas, this time in the context of the Protection of Employees (Employers’ Insolvency) Act, once again the opportunity

to act was not taken. On that occasion the then Minister for Labour linked reform of the area to the pending EC Directive on Voluntary Part-time Work, which the Com- munity subsequently failed to adopt[Zl].

Another opportunity came and went in 1988, this time in the context of the debate on the Worker Participation (State Enterprises) Act. Yet again it was recognised that some- thing needed to be done, but again any decision was postponed, pending a separate debate on the problems facing ’marginal’ workers[22]. Finally, in 1991, a decade after the issue was stated to need separate attention, legislation was introduced to address the area; indeed, two Bills were introduced[23].* Before examining the contents of the final legislation, it is of interest to investigate some of the views of Irish employers and trade unions on the issue, and to compare the ultimate legislation with these opinions.

5. Employer and trade union responses to the protection of

part-time workers Not surprisingly, the trade union movement sought considerable extension of rights to part-time employees, whereas employers saw such protection as posing obstacles to continued and future employment. Both the FIE and the ICTU made submissions to the Minister for Labour concerning the Act, prior to its passage. Some of the positions in these submissions are discussed in the following pages. a. Endangering employment-the labour cost argument According to the Federation of Irish Employers, there are a number of problems with the extension of protective legislation to part-time workers. Fundamentally, these reduce to two primary factors which, in the eyes of the Federation, are of great significance for the competitiveness of Irish industry and for the growth of employment in Ireland. Those factors are the cost of such protection to employers and the disincentive effect of such legislation on the creation of new employment. In the opinion of the Federation, the increase in protective employment legislation in the 1970s created

* The first Bill was introduced by the Workers’ Party, but was rejected by the government.

Protection of part-time workers in Irish law 123

substantial obstacles for industry, such that there was a decline in employment levels as a partial result:

The lessons of the recent past are clear. A flood of new employment legislation in the 1970s was followed by a steady decline in total employment in the 1980s. From a peak of 877,000 employees in 1981, the total fell persistently to 817,000 in 1985. . . . Employment law was not the only cause, nor even the largest single cause, of the above- mentioned decline in employment. But it is the emphatic view of the [FIE] that i t contributed to it. In addition, it must, in our opinion, have helped to deter very many employment decisions.[24]

Despite the above assertions, the FIE was unable to point to any definitive proof that employment law had acted as a significant disincentive to employment growth and creation. The Department of Labour com- missioned a research report on employers’ responses to labour legislation in 1986, entitled ’Employers’ Perception of the Effect of Labour Legislation’[25]. The report concluded that in general the disincentive effect of such legislation was minor. Rather, the responses to the questionnaires revealed that legislation concerning value-added tax was of more significance to employers as it caused more administrative problems[26]. However, the FIE, in its submission to the Minister for Labour, argued that the results of the questionnaires not only identified a significant obstacle posed by labour law for employers, but also that the responses underestimated the true extent of the obstacle:

In this regard we have annexed to this submission a table from the 1986 report on ’Employers’ Perception of the Effect of Labour Legislation’. This table shows very significant employer concern with various pieces of employment legislation. Yet, in our view, for the reason stated in the annex, the deterrent effect of employment law is even greater than that table suggests. . . . [Tlhis table understates the negative effect of employment law on employment for four reasons. First, it takes no account of the views of the hundreds of employers who have gone out of business each year. Second, it does not refer to the thousands who might well have become employers had it not been for the extensive burden of employment law. Third, the table does not reflect the extent to which multi-national companies cancelled possible expansion of employment in Ireland or went elsewhere because of the weight and complexity of our employment law. Finally, the table gives no indication of the views of employers on employment law as a

whole. This IS important as the weight of this body of law is, in a very real sense, greater than the sum of its parts in terms of its deterrent effect on employment.[27]

According to the FIE, protection, if it had to be extended, should be restricted to certain categories of workers. In the first place

there should be no extension of any existing rights under employment law to those who do part-time work (of whatever weekly duration) on an irregular or intermittent basis. Those with less than five years continuous part-time seryice with the same employers should be deemed to be irregular/intermittent part-time workers.[28]

Moreover, while the FUE agreed that a valid case might exist for a pro-rata extension of certain rights to regular part-time workers, as opposed to irregular part-time workers defined above,

[such extensions] have cost implications and hence an adverse effect on employment. We must therefore proceed with extreme caution.[29]

Using the USA and Britain as examples, the FIE argued that deregulation and increases in hours-worked thresholds for the application of protective legislation tend to increase the number of people employed on a part-time basis, thus partially contributing to the solution of the unemployment problem[30]. Consequently, in relation to qualification thresholds, the Federation advised that:

. . , the present threshold should be maintained at 18 hours per week. Subject to this weekly hours threshold and to a five-year service threshold, benefitdrights conferred on full-time/permanent employees in relation to holidays, minimum notice and contracts of employment legislation might be extended on a pro-rata basis. On the other hand, the law relating to such matters as dismissal, redundancy and maternity leave should not be extended beyond its present scope[31].

The rationale behind these objections was further explained by the Director General of the Federation in 1989 in the following terms:

Employment will grow only significantly in Ire- land when the evolution of our costs, the levels of our productivity, the extent of our industrial conflict and the degree of legislative constraints on employment all achieve and sustain favourable comparison with competitor countries. On the first three counts we have made significant progress under the PNR [Programme for National

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Recovery] and its associated pay agreements. However, our legislative constraints on employment are considerable. Given our peripheral location within the EC and our lack of economic development relative to the majority of EC countries, we cannot realistically expect to adopt all the most comprehensive or complex labour laws which exist in the more developed countries until we have made considerable advances and substantially closed the economic gap. And, in any event, we have already adopted a great number of statutes which impact on the employment arena.[32].

b. Equal Treatment: the ICTU Argument: In opposition to the position of the FIE, the Irish Congress of Trade Unions (ICTU) argued in its submission to the Minister for Labour that the lack of protection for part- time employees was not justifiableI331. Moreover, it reminded the Minister of an undertaking given in the 1987 Programme for National Recovery to tackle the issue[34].

Referring to the developments in the Euro- pean Commission concerning the Social Charter, which Ireland had supported in principle, the ICTU argued that it was time for the Irish government to implement reforms. It submitted that the effect of the current threshold qualification was unac- ceptable and consequently called for at least a pro rata extension of protective legislation to part-time workers[35].

6. The Worker Protection (Regular Part-time Employees)

Act, 1991 Although the Act is quite short, having but eight sections, i; is a rather confusing enact- ment as it amends and refers to a variety of sections in seven other pieces of legislation. The Act was introduced due to concern that regular part-time workers employed on a long term basis were denied entitlement to the “most basic protections”[36]. However, alleviating this problem had to be balanced against ”the danger of over-regulation which would jeopardise flexibility, hinder employment growth, and drive some of those jobs into the black economy”[37].

Certain employment legislation has been extended to regular part-time employees as if they were full-time employees[38], while the Holidays (Employees) Act, 1973) is now applied to regular part-time employees on a pro rata basisl391.

The Act defines ‘regular part-time’ as referring to an employee who (a) has been in the

continuous service of the employer for not less than thirteen weeks, and (b) is normally expected to work not less than eight hours a week for that employer[40]. Under section 1(3), the Minister for Labour is empowered to alter the definition in relation to the minimum weeks and/or hours requirement by statutory order with the approval of the Oireachtas.

The eight hours threshold was chosen in order to bring the majority of part-time workers within the ambit of existing labour law, and to cause a sufficiently low disincentive to employers to create new contracts below the hours threshold[41]. A second reason was the intention of the EC Com- missioner on Social Affairs to use an eight hours threshold in proposed directives on non-standard forms of employment[42].

The thirteen weeks threshold was chosen to ensure that students and other short-term temporary part-time employees would not be covered by the Act and that the Act would not cause a disincentive to such periods of employment[43].

In response to criticism that thresholds should not be maintained at all, the Minister stated that in the consultations he had had on the Act it was emphasised that removing thresholds would cause problems out of proportion to the benefits to be achieved. While he did not agree with arguments that as employment protection legislation represents a cost to employers, recourse should be had to deregulation or retrench- ment, at the same time regard had to be had to the likely impact of legislation on labour costs[44].

The 13 weeks ‘continuous service‘ is to be calculated in accordance with the First Schedule of the Minimum Notice and Terms of Employment Act, 1973[45]. Moreover, in addition to calculation of the 13 weeks by the above process, the Employment Appeals Tribunal is to have a discretion to consider whether an employer attempted to avoid the obligations arising under the Act by dismissing and later re-hiring an employee within 26 weeks of the dismissal, or by reducing the weekly working hours of the employee below the eight hours threshold. If the Tribunal believes such was the purpose of the dismissal or reduction in hours, such dismissal or reduction will not have the effect of breaking continuity or computability of service of the employee[46]. This provision was introduced to prevent ’unscrupulous

Protection of part-time workers in lrish law 125

employers' from evading their responsibilities under the Act[47].

Any dispute as to calculation is to be decided by the Employment Appeals Tri- bunal whose decision is to be final save in the event of an appeal to the High Court on a point of lawf481.

The basic effect of the 1991 Act is to reduce the hours threshold from 18 to 8 for the application of six of the seven Acts, and to provide proportionate holiday entitlements for regular part-time employees under the seventh. From the set of all those workers who work part-time, the Act extends protection to the subset who work a minimum of eight hours per week for a minimum period of 13 weeks. Under section 3, all the relevant Acts, other than the Holidays (Employees) Act, 1973, are to apply to regular part-time workers in the same manner as they applied to existing protected employees. Section 4 of the Act makes special provisions for the application of the Holidays (Employees) Act, 1973 to regular part-time employees.

The hours and weeks thresholds interact with the existing qualification rules in the relevant Acts as follows: under section 2 of the Act, where a service qualification of 13 weeks or more already applies in an Act which the 1991 Act seeks to extend to regular part-time workers, such as the Unfair Dis- missals Act, 1977, the 13 weeks service required to bring the employee under the terms of the 1991 Act will count towards the longer service period. Therefore, under the Unfair Dismissals Act, 1977 the 13 weeks will count towards the existing one year's service qualification. Similarly, under the Maternity (Protection of Employees) Act, 1981, the 13 weeks service will count towards the existing requirement to work for 26 weeks before entitlement to leave accrues.

Other than being counted towards such service requirements, the 13 weeks does not confer any other benefits or rights under the other Acts, unless provision for such conferral is specially made. Therefore, section 2(4) prevents holiday entitlements being built up during the 13 weeks. The rationale given for this was that otherwise

a real cost barrier to employment beyond 13 weeks would be created, leading to a reduction in regular part-time employment opportunities. (491.

Furthermore, under section 4(4) no calculation of service was to be made until the

Act came into effect in relation to the 1973 Act. Comment While the Act is a welcome extension of protection to a large sector of the part-time workforce, a number of issues yet remain unresolved. The maintenance of the eight hour threshold is still problematic in the context of European Community discrimination law[50]. As the majority of part-time workers who work less than eight hours per week in Ireland are women, the eight hour threshold places such female part-time workers at a disadvantage[51]. Employment legislation which applies thresholds for its application may be indirectly discriminatory, and thus contrary to European Community law, where a preponderance of those disadvan- taged by the threshold are of a different gender to those who benefit from the legislation by coming within the threshold[52]. Thus the European Court of Justice has decided that prima facie a pension scheme from which part-time workers were excluded was contrary to Article 119 of the Treaty of Rome

where that exclusion affects a far greater number of women than men(531.

Similarly, the Court decided that the denial of sick pay claims to part-time workers on the basis of not satisfying an hours-worked threshold was contrary to EC law, where the proportion of female workers affected was greater than the porportion of males[54]. In a further case, the Court decided that the denial of severance pay to part-time workers under the regulations contained in the Ger- man Federal Employee Collective Agreement (BAT) was also discriminatory where propor- tinally less men than women were affected by the regulation.[55]

Moreover, the Act does not apply to those employed on contract work and through employment agencies. The extension of the Act to such workers was sought by the ICTU, who argued that definitions of employers and employees which covered such workers should be included in the Act[56]. In response to such suggestions, the Minister stated that he had undertaken in the Programme for Economic and Social Progress to examine the position of agency workers and, that as the review would take some time, the Act should not be delayed on this account[57].

Despite the provisions of the Act and the

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existence of other equality legislation, certain aspects of employment are not covered by legislation. Consequently, an attempt was made by the Workers Party to include an amendment requiring a n employer to treat regular part-time employees equally with full-time employees in relation to working conditions and terms of employment, including remuneration, access to occupational schemes, overtime, layoffs, redundancy, short time, transfers, dismissals, disciplinary measures, participation in bodies rep- resenting workers, access to training, pro- motion and other workplace facilities[58]. This amendment resembled the central points of the Workers Party’s own Bill, defeated in May, 1990. The attempt was rejected by the Minister on the basis that the amendment was a fundamental depar- ture from the structure of the Bill and was not within its scope. Moreover, according to the Minister, the objectives of the amendment would be achieved by the Act i n relation to those rights to which the Act applies(591.

In a similar vein, an attempt had been made to have a statutory minimum wage. provision included, given the diversity between rates of pay for full-time a n d part- time employees. This was rejected by the Minister for two reasons. In the first place, the issue is to be studied by the Employer- Labour Conference under the terms of the Programme for Economic and Social Pro- gress[60] , and secondly, according to the Minister, research carried out by the Depart- ment of Labour on the economic effects of minimum wage legislation concluded that such legislation could reduce employment levels[bl].

Despite this Act, a number of part-time and atypical workers still remain ‘beyond the net’. This legislation arose in part d u e to a committment made by the Irish government under the Programme for Nat ional Recovery i n 1987[62]. It will be of interest to see what further changes to Irish labour law arise from its successor, the Programme f o r Economic and Social Progress, i n the future in relation to these workers.

References

1 At the level of the European Community, a number of attempts have been made to introduce directives which seek to extend legal protection to such workers. See the draft

Directive on Voluntary Part-time Work, 1982, (0. J. 1982 C 62/7); and the recent Draft Directive on Atypical Work introduced under the Action Programme of the proposed Social Charter.

2. See Hakim, C., ’Employment Rights: a Com- parison of Full-time and Part-time Employees’, [1989] 18 I L ] 69 who questions common assumptions that most part-time workers are not covered by protective legislation; that labour costs for part-time employees are lower; and, that employers seek to maintain such employees hours of work below qualification thresholds. Contrast the reply by Disney, R., and Szyszczack, E., ‘Part-time Employees: A Reply to Catherine Hakim’ [1989] 18 IL] 223.

3. The ILO definition is ’regular, wage employment with hours of work substantially shorter than normal in the establishment concerned.’ See further, Thurman, J. E. and Trah, G., ’Part- time work in international perspective‘, (1990) 129 International Labour Review 23.

4. See Rinner-Kuhn v. F W W Spezial-Gebauder- einigung GmbH & Co. K . G. Case 171/88 [1989] IRLR 493.

5. See Redmond, M., ’Beyond the Net-Protecting the Individual Worker’, (1983) 2 Journal of the Irish Society for Labour Law 1; Whyte, G., ‘Part-time Workers Under Labour and Social Welfare Law’, (1989) 11 Dublin University Law Journal 74.

6. See Labour Force Survey, 7988, Table 37. 7. See Blackwell, J., ‘The Changing Role of Part-

time Work in Ireland and Its Implications’, [1990] 1 Labour Market Review 1, at pp. 8-9.

8. Central Statistics Office, National Income and Expenditure, 1988 (Dublin, 1989). In this regard it should be noted that the FIE argued that should EC directives on the protection of part- time workers be enacted, this very increase in social insurance contributions would “make part-time employment less attractive to both employers and employees.’’-FIE, Submission to the Minister for Labour on EC Draft Directive on the Approximation of Laws of the Member States Relating to Certain Employment Relation- ships with Regard to Distortions of Competition. (Dublin: FIE, October 1990) p. 8.

9. See Bilka-Kaufhaus v. Weber von Hartz Case 170/84 [1986] ECR 1607; Curtin, D., Irish Employmenf EquaIity Law, Dublin, 1989, Ch. 10; O’Donovan, K., and Szysczack, E., Equality and Sex Discrimination Law, Oxford, 1988. See the opposition of the CBI in the UK to the suggestion by the Equal Opportunities Commission that individual pay awards in discrimination cases should be extended to all employees doing the same work: ‘CBI rejects proposals to reform equal pay‘, Finan- cial Times, 2 April, 1991; p. 12.

10. See Callender, R., ’Women and Work: The Appearance and Reality of Change’, (1990) 1


Labour Market Review 1&36, at p. 26. 11. See Blackwell, op. cit., at p . 6. 12. Blackwell, op. cit., at p. 12. 13. Dunne, J., Director General, FIE, ‘Reconciling

Job Security and Flexibility’, Address to Sem- inar on Part-time Work, (May 12,1989) at p. 4.

14. Section 4(2) of the Redundancy Payments Act, 1967, as amended by section 12 of the Protection of Employees (Employers’ Insolvency) Act, 1984, required a minimum of eighteen hours work per week before it applied to an employee.

15. Section 3(l)(a) of the Minimum Notice and Terms of Employment Act, 1973 as amended by section 13 of the Protection of Employees (Employers’ Insolvency) Act, 1984.

16. Section 3 of the Holidays (Employees) Act, 1973 required an employee to have worked 120 hours (110 if under 18) in the previous calendar month in order to qualify for paid holidays or paid public holidays.

17. Section 2(l)(a) required beneficiaries to have one year’s continuous service, calculated on a basis of a minimum 18 hours per week- s.2(4); see also paragraph 8 of the 1st schedule to the Minimum Notice and Terms of Employ- ment Act, 1973, and section 13 of the Protec- tion of Employees (Employers’ Insolvency) Act, 1984. Part-time workers had a remedy where dismissed for pregnancy or maternity as sections 2(1) and 25 of the Maternity (Protection of Employees) Act, 1981 d o not require a predetermined employment period. Similarly, part-time employees have a remedy where dismissed for trade union membership or activities: see section 6(7) of the Unfair Dismissals Act, 1977.

18. See section 3 of the Protection of Employees (Employers‘ Insolvency) Act, 1984. Under the Social Welfare (Employment of Inconsiderable Extent) Regulations, 1991; the eighteen hours threshold has been replaced by an earning threshold of €40 per week.

19. FitzGerald, G., Vol. 64 Seanad Debates, col. 121 (29 November, 1967). He received the following assurance from Dr. Hillery: “My information is . . . . that the 21 hours [threshold] would exclude most of those married women engaged in jam-making and similar kinds of occupations.” At col. 130.

20. See the exchange in Vol. 95 Seanad Debates, at col. 1167-69 (18 March, 1981) on why the 18 hour threshold was maintained.

21. Mr. Quinn: ’I . . . the people who will be covered by this legislation will be those within the social welfare code who are paying PRSI and who are covered under redundancy legislation. Under that legislation people who worked less than 18 hours a week for more than one employer or for one employer for part time income are not covered normally under existing legislation. We propose to keep it that way for the purposes of continuity,

harmony and other administrative reasons. . . . Part time work is becoming an increasing economic reality because of productivity levels and other factors. The Social Affairs Coun- cil of the EC have recognised that problem. They have also recognised that there are difficulties arising from the mismatch between the social protection for workers in part time employment and workers in full time employment. For that reason we are at present working on a directive to cover part time workers . . . ” (Vol. 354 Dail Debates, 21 November, 1984 at cols. 297 and 306).

22. Mr. B. Ahern: ”The definition of part-time work generally is a matter for consideration in a separate discussion . . . It is not a matter which will be resolved in the context of this Bill because it affects several Ministers . . . We must try to get a fairly long-term solution to the problem of part-time employees, but it is better to d o that in an orderly way rather than try to jump ahead of all other legislation”-Cols. 1264 to 1268, Vol. 381 Dail Debates (2 June 1988).

23. See “WP part-time workers’ Bill is defeated”, The Irish Times, May 3, 1990, p. 5. The second Bill, now the Act, was introduced by the government in December, 1990.

24. Federated Union of Employers, Submission to the Minister for Labour on Conditions of Employment Legislation and Part-time Working (Dublin: FUE, 10 March, 1989) at pp. 2-3.

25. Williams, J., and Whelan, B., Employers’ Per- ception of the Effect of Labour Legislation (Dublin: Department of Labour, August 1986).

26. See pp. 21-23 and 33-35, ibid. 27. Annex to the Submission. 28. See p. 13 of the Submission. 29. See p. 14 of the Submission. 30. Dunne, J., Director General, FIE: ’Reconciling

Job Security and Flexibility’, Address to the Seminar on Part-time Work, (May 12, 1989), at pp. 9-10.

31. See page 14 of the Submission. 32. Dunne, J., ’Reconciling Job Security and Flexi-

bility‘ op. cit. p. 4. 33. Irish Congress of Trade Unions, Outline Pro-

posals for Legislation on Part-time Workers submitted to the Ministerfor Labour (Dublin: ICTU, April, 1988).

34. At p. 1 of the Outline. 35. At p. 2 of the Outline. 36. B. Ahern, Minister for Labour, Vol. 405 Dail

37. Vol. 405 Dail Debates at col. 2004. 38. See Redundancy Payments Acts, 1967-1990;

Minimum Notice and Terms of Employment Acts, 1973 and 1974; Worker Participation (State Enterprises) Acts, 1977 and 1988; Unfair Dismissals Act, 1977, Maternity Protection of Employees Act, 1981; and the Protection of Employees (Employers’ Insolvency) Acts, 1984 and 1990.

Debates col. 2001. (28 February, 1991).

128 Industrial Relations Journal

39. Section 3. Section 4(3)(a) amends the 1973 Act so that a regular part-time employee is entitled to 6 hours leave for every 100 hours worked in a leave year, and to proportionately less where there are fewer hours worked.

40. Section 1. 41. B. Ahern, Minister for Labour, Vol. 405 Dail

42. Vol. 405 Dail Debates col. 2004. 43. Vol. 405 Dail Debates col. 2006. 44. Vol. 406 Dail Debates 474, (7 March, 1991). 45. Section 2(1). In all the relevant legislation,

requirements to have worked 18 hours or more per week, or to have 13 or more weeks service have been amended so that they now require 8 hours and 13 weeks. See section 2 ss(l)(b), and ss(2)(a) and (b).

Debates col. 1997, (28 February 1991).

46. Section 2 (2). 47. Vol. 128 Seanad Debates col. 298-99 (20 March,

1991). 48. Section 5 49. B. Ahern, Vol. 128 Seanad Debates col 299,

(20 March, 1991). 50. See Barry, E., ’The Worker Protection (Regular

Part-Time Employees) Bill, 1990’ (1991) 9 (2) Irish Law Times 26.

51. According to the Labour Force Survey of 1988 11% of female part-time workers work between 1 and 9 hours per week, in contrast to 7% of male part-time workers. See further, Blackwell, op. cit., p. 11 and, generally, E. Drew, ’Who Needs Flexibility?’ (Dublin: Employment Equality Agency, 1990).

52. See generally, Deakin, S., and Garnsey, E., ’Part-time Work and Sex Discrimination: The Relationship Between British Labour Law and European Community Standards’, in House of Commons Employment Committee, Second Report on Part-time Work (HMSO: 1990) at 268.

53. See Bilka-Kaufhaus Gmbh u. Weber von f far t z [1986] ECR 1607.

54. See Rinner-Kuhn u. F W W Spezial-Gebauder- einingung GmbH G. Co. [1989] IRLR 493.

55. See Kowalska v . Freie und Hansestadt Hamburg [1990] IRLR 447. For commentaries on these cases see Szyszczak, E., ’Equal Opportunities Law‘ (1990) 19 Industrial Law Journal 114, and Reiland, C., ‘Sex Discrimination in Collective Agreements’ (1991) 20 Industrial Law Journal 79.

56. See the ICTU’s Outline Proposals for Legislation on Part-time Workers (Dublin: 1988).

57. Vol. 406 Dail Debates col. 471. 58. See Vol. 406. Dail Debates col. 854 et seq. 59. Vol. 406 Dail Debates col. 858. (13 March, 1991) 60. On the Programme for Economic and Social

Progress see (1991) 207 European Industrial Relations Review and Report 16.

61. Vol. 406. Dail Debates cols. 470-71. 62. On the Programme for National Recovery and

the relationship between the Programme and labour relations and labour law in Ireland, see further Wilkinson, B., ’The Irish Industrial Relations Act 1990-Corporatism and Conflict Control’ (1991) 20 (1) Industrial Law Journal 21-37.


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